| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 187/08 |
| Hearing date | 15 May 2008 |
| Determination date | 23 May 2008 |
| Member | R Arthur |
| Representation | L de Vries ; R Mark |
| Location | Whangarei |
| Parties | Andrews v Nyalaberry Ltd t/a Kerikeri Mitre 10 |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant previously suffered work injury and received ACC - Further treatment required months later - Made appointment during work hours - Did not advise respondent until day of appointment - Manager queried injury - Also advised applicant regarding ACC - However, at least some of what manager said inaccurate or overstated - No requirement applicant use own time just because part time employee - Notion he should apply for earnings-related compensation for attending appointment technically correct but somewhat fanciful - Comments ran real risk of being likely to mislead or deceive applicant and were not in good faith or consistent with obligation of trust and confidence - Querying appointment amounted to breach of good faith, trust, confidence and fair dealing - However, in light of applicant’s previously robust approach to dealing with respondent, not reasonably foreseeable that action would cause resignation - Breach not sufficiently serious to cause resignation - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - How respondent dealt with news of appointment disadvantaged applicant - Fair and reasonable employer would have inquired into reasons for appointment and considered whether needed to accommodate him because of ongoing effects of injury - To that extent, respondent’s actions unjustified - Unjustified disadvantage - Remedies - Contributory conduct 100% - Applicant should have let respondent know of appointment in advance so it could arrange cover - To inform respondent of appointment part of applicant’s own obligations of good faith, trust and confidence - Conduct sufficient to extinguish modest amount of compensation would otherwise have received - ARREARS OF WAGES - Applicant also sought two weeks pay in lieu of notice - After resigning respondent did not require him to return to work - No doubt applicant intended to work out notice and did not initiate discussion about finishing early - More likely than not applicant considered respondent exercising discretion to pay out notice when said he could “leave now” - Arrears due and owing - Salesperson |
| Result | Application granted (Disadvantage ; Arrears of wages) ; Arrears of wages (Two weeks) ; Application dismissed (Dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;Injury Prevention Rehabilitation and Compensation Act 2001 s6 |
| Number of Pages | 11 |
| PDF File Link: | aa 187_08.pdf [pdf 37 KB] |